CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 mai 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  The European Commission of Human Rights sitting in private on 12 May 1986, the following members being present:                      MM C.A. NØRGAARD, President                       G. SPERDUTI                       J.A. FROWEIN                       F. ERMACORA                       E. BUSUTTIL                       G. JÖRUNDSSON                       G. TENEKIDES                       S. TRECHSEL                       B. KIERNAN                       A. WEITZEL                       J.C. SOYER                       H.G. SCHERMERS                       H. DANELIUS                       G. BATLINER                   Mrs G.H. THUNE                   Sir Basil HALL   Mr H.C. KRÜGER, Secretary to the Commission   Having regard to Article 25 (art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 17 June 1980 by J.M. against the Federal Republic of Germany and registered on 3 February 1982 under file No. 9701/82;   Having regard to:   - the report provided for in Rule 40 of the Rules of Procedure of the Commission;   - the decision of 14 May 1984 to communicate the application for observations on its admissibility and merits;   - the respondent Government's observations of 30 October 1984 and the applicant's replies of 5 and 20 May 1985;   Having deliberated;   Decides as follows:   THE FACTS   The applicant, a lawyer working as a civil servant in a Federal ministry, is a German citizen, born in 1935 and living in Bonn.   He complains of the length of proceedings in which the question had to be determined whether he or his ex-wife should be granted the parental right to care and custody over their two sons, who were born in 1968 and 1969 respectively.   The couple separated in 1971 when the mother, of Austrian nationality, left the applicant and returned to her home country taking with her the two children.   Divorce proceedings were instituted in the same year. Eventually the divorce was pronounced by the Cologne Court of Appeal (Oberlandesgericht) in second instance and the divorce judgment of 4 February 1974 became final on 3 May 1974.   According to the appellate court's judgment both parties were guilty of the divorce but the wife's guilt was predominant.   Parallel to the divorce proceedings the Guardianship Court (Vormundschaftsgericht) at Bonn first had to regulate the applicant's right of access (Umgangsrecht).   On 21 May 1971 the applicant also requested that he be granted the right to determine where the children should live (Aufenthaltsbestimmungsrecht).   On 28 May 1971 the Guardianship Court heard the parents and their counsels on this request.   The parties declared at the hearing that all problems would first be discussed between their legal representatives and that the guardianship proceedings should consequently be suspended.   Referring to his previous request of 21 May 1971, on 5 May 1972 the applicant submitted a request asking the Guardianship Court to grant him the provisional right to care and custody over both children pending the divorce proceedings.   This request was based on Sections 1672 (1) and 1666 of the Civil Code (BGB).   He alleged that the manner in which his wife treated the children was a danger for their physical and mental well-being.   He also complained that his wife had not respected orders he had obtained previously concerning his right of access.   --------------- (1) This Section provides that in case of separation of parents the court decides at the request of one of them on the provisional attribution of the right to care and custody. This question is determined according to what is in the best interest of the child(ren). ---------------   On 14 July 1972 the Guardianship Court obtained a report of the Youth Office (Jugendamt) Völkermarkt/Austria about the living conditions of the children.   On 15 February 1973 the Guardianship Court obtained a further report of the Bonn Youth Office.   On 4 April 1973 the Guardianship Court granted the right of care and custody to the mother.   The applicant appealed.   His appeal was rejected on 8 June 1973 by the Bonn Regional Court.   The applicant lodged a further appeal.   On 9 November 1973 the Cologne Court of Appeal quashed the Regional Court's decision of 8 June 1973 and sent the case back for re-examination by the Regional Court.   According to the Court of Appeal the applicant had submitted evidence tending to show that the Austrian Youth Office's Report was not based on a thorough and personal investigation on the spot.   The appellate court therefore considered it necessary that the Regional Court investigate further and in more detail the children's living conditions in Austria and the question of the mother's aptness to bring up the children.   The proceedings under Section 1672 BGB were terminated without further decision as on 3 May 1974 the divorce became final.   Subsequently the Guardianship Court had to decide under Section 1971 of the Civil Code (BGB) to whom of the divorced parents the parental right to care and custody was to be awarded.   On 19 June 1974 the court charged Dr. K to submit an expert opinion on the question whether either of the parents had had a negative influence on the development of the children.   In July 1974 the court received a report from the Bonn Youth Office.   On 12 November 1974 Dr. K submitted an expert opinion suggesting leaving the children in the care of the mother.   The applicant criticised the expert opinion and requested the court not to base its decision thereon.   He requested that a further expert should be heard.   On 23 May 1975 Dr. V was charged by the court to submit an expert opinion.   In September 1975 the court received another report from the Bonn Youth Office.   In October 1975 Dr. V submitted his expert opinion.   He considered it best for the children if the mother continued to take care of them. In April 1976 the court requested the International Social Service to obtain a report on the children's living conditions in Austria.   In July 1976 the court received a report of the competent Austrian Youth Office.   As the report was in favour of the mother it was objected to by the applicant who requested that supplementary investigations be carried out in Austria.   Furthermore the applicant requested another expert opinion from a psychologist.   Supplementary information from the Austrian Youth Office was obtained in October 1976.   On 29 October 1976 the court heard the parties, the experts Dr. V and Dr. K and a representative of the Bonn Youth Office.   The applicant challenged the expert Dr. K and again suggested obtaining the expert opinion of a psychologist.   The motion of challenge was rejected.   Subsequently the court tried to find another expert (psychologist) in agreement with the parties, although Dr. V had declared at the oral hearing that no relevant new results could be expected from a further expert opinion and further examination would only affect the children.   Eventually an expert, Dr. W, was found and instructed on 27 May 1977.   On 1 July 1977 the Bonn Family Court (Familiengericht) became competent to deal with the case, due to a change of legislation.   In February 1978 the applicant suggested that Dr. W should prepare his expert opinion in consultation with an expert on diabetes, as one of his sons (Markus) is suffering from diabetes.   On 31 May 1978 the Family Court consequently appointed Dr. B to submit a supplementary expert opinion.   He submitted an interim report on 28 June 1978.   On 27 June 1978 Dr. W submitted her expert opinion stating there were no coercive reasons to commit the children either to their father or to their mother.   On 7 August 1978 the court heard the children, the parents and a representative of the Bonn Youth Office. On 21 August 1978 the court heard counsels for the parents and the expert Dr. W.   On 26 September 1978 the Family Court granted the mother the right of care and custody.   The applicant lodged an appeal.   On 24 November 1978 the applicant, who had already changed counsel several times, informed the court that he chose another counsel.   Counsel requested to be given time to study the voluminous files.   On 26 March 1979 the applicant's counsel, having repeatedly obtained extensions of the time-limit, eventually submitted further reasons for the appeal.   Observations by both parties were exchanged throughout July to September 1979.   On 29 September 1979 the Court of Appeal decided to obtain further evidence. In February 1980 the court received a further report of the Austrian Youth Office.   On 27 May 1980 the appellate court heard the parties and the children and the expert Dr. W.   Both children stated that they liked living in Austria and wanted to stay there.   They also stated that they wished the applicant's right of access regulated in a generous manner.   On 24 June 1980 the applicant's appeal was dismissed in so far as it concerned the right to care and custody.   The Court of Appeal, however, amended the Family Court's decision in so far as it concerned the applicant's right of access.   The principal events in the proceedings concerning the right to care and custody are set out in the attached annex.   The applicant lodged two constitutional complaints.   The first concerned decisions given by the Cologne Court of Appeal on 31 January 1975 confirming that the provisional regulation of 4 April 1973 transferring the right to care and custody to the mother remained valid until a new order was given in this respect after the divorce. This complaint was rejected by the Federal Constitutional Court (Bundesverfassungsgericht) on 1 June 1976 as offering no prospects of success.   The second complaint concerned the appellate court's decision of 24 June 1980 and the length of the proceedings.   It was dismissed on 23 July 1981 again as offering no prospects of success. The court considered that the length of the proceedings was sufficiently explained by the particular difficulties of the case (.. weil der Fall besondere Schwierigkeiten bot, die sich zeitlich auswirken mussten).   COMPLAINTS   The applicant complains of the length of the proceedings concerning the right to care and custody.   He invokes Article 6 para. 1 (art. 6-1) of the Convention.   Referring to Article 8 para. 1 (art. 8-1) of the Convention, he also complains that as a result of the duration of the proceedings up to 26 September 1978 he and his children had been deprived of the right to respect for family life without there being a judicial decision or a legal basis justifying this situation.   PROCEEDINGS BEFORE THE COMMISSION   The applicant first wrote to the Commission's Secretariat on 17 June 1980 stating that he intended to complain about the length of proceedings concerning the right to parental care and custody.   In reply he was sent an application form on 15 July 1980 and requested to submit copies of the decisions given in the proceedings concerned.   He did not reply to this letter until 20 January 1982 when he returned the application form.   On 14 May 1984 the Commission decided to communicate the application for observations on its admissibility and merits.   The respondent Government's observations dated 30 October 1984 were received on 9 November 1984.   The applicant submitted replies on 5 May 1985 and 20 May 1985.   He stated in his letter of 20 May 1985 that he would submit further observations.   However, no such further observations were received.   SUMMARY OF THE PARTIES' OBSERVATIONS ON ADMISSIBILITY AND MERITS   The respondent Government   The respondent Government have submitted a detailed history of the proceedings in question which is reflected in the summary of the principal events attached to this decision.   1.       The respondent Government argue that the proceedings concerning the provisional attribution under Section 1672 of the Civil Code (BGB) of the right to care and custody pending the divorce are distinct from the subsequent proceedings after the divorce.   The proceedings concerning Section 1672 BGB were started by the applicant's request of 5 May 1972 and terminated when the divorce became final, i.e. on 3 May 1974, or, at the latest, on 31 January 1975, when the Cologne Court of Appeal confirmed that the Guardianship Court's order of 4 April 1973 provisionally attributing the right to care and custody to the mother continued to be valid until a new decision on the attribution of this right after the divorce was taken. Consequently the application was, with regard to these proceedings, lodged out of time.   In any event, the courts dealt with the various motions and appeals lodged by the applicant and/or his ex-wife respectively in an expeditious manner.   2.       As regards the proceedings concerning the attribution of the right to care and custody after the divorce became final the respondent Government point out that both the applicant and his ex-wife lodged numerous requests concerning the right of access on the one hand and the right of care and custody on the other hand.   The proceedings concerning these different requests should not be considered as an integrated whole.   The reasonableness of the length of the proceedings in question therefore had to be judged in a more differentiated manner than other court proceedings because the courts were under the obligation at any time to review ex officio or at the request of a parent whether a change of the factual situation necessitated a change of the existing regulation concerning the exercise of the right to care and custody.   In fact the applicant repeatedly requested that he be granted the right to care and custody by way of injunction.   The respondent Government argue that the length of the proceedings was primarily caused by the parties, i.e. the applicant and his ex-wife. In this connection it is pointed out   - that the applicant changed counsel eight times and that the new counsels often requested extension of time-limits to submit observations;   - that the parents disputed each other's right of access and right to care and custody in an embittered manner and quarelled about every detail concerning the right of access. Most of the time two instances had to deal with these matters;   - that the files often had to be submitted to higher courts for decision on the numerous appeals lodged in connection with the disputes on the right of access;   - that the applicant repeatedly submitted private expert opinions or criticised the official expert opinions if they did not confirm his affirmation that he was best suited to raise the children;   - that the manner in which the experts should proceed was often in dispute between the parents.   Therefore each of them repeatedly tried to have the regulations concerning the right of access changed believing thereby to create more favourable conditions in view of the preparation of the expert opinion.   As regards the handling of the case by the courts the respondent Government consider that the history of the proceedings prove that at no stage was the matter dealt with in an inappropriate or dilatory manner.   The proceedings were rendered difficult by the extremely controversial attitude of the parties.   As Youth Offices and experts considered both of the parents apt to educate the children it was absolutely necessary for the competent court to obtain thorough and complete knowledge of all circumstances in order to decide what was best for the well-being of the children.   Finally the respondent Government submit that by complaining of the length of the proceedings the applicant in reality tried once more to question the decision attributing to his wife the right to care and custody.   There was, however, nothing to show that this decision was arbitrary and was not primarily motivated by the necessity to assure the children's well-being.   The applicant   The applicant argues that the proceedings concerning the request under Section 1671 of the Civil Code (BGB) subsequent to the divorce were a continuation of the proceedings concerning the request under Section 1672 BGB pending the divorce proceedings.   Therefore these two proceedings should be considered as a whole having lasted from 5 May 1972 until 24 June 1980.   These long proceedings were a torture for both children and parents.   The length of the proceedings could not be explained by the fact that the right of access was likewise and repeatedly in dispute as these disputes should have been settled in separate proceedings.   The timetable of the proceedings showed that there were several periods of inactivity of the court.   Between May 1972 and May 1974 the Guardianship Court did not carry out all the investigations necessary to decide on the attribution of the right to care and custody.   The time from May 1974 to May 1977 was wasted for irrelevant investigations.   As early as 1973 or 1974 the court should have ordered that an expert opinion be submitted.   The court was not responsible for the long-lasting preparation from May 1977 to June 1978 of the expert opinion, but the period from 8 November 1978 to 28 September 1979 was again marked by inactivity.   The appellate court should and could have started investigations before the parties had submitted their observations concerning the appeal.   As regards the alleged violation of Article 8 (art. 8) of the Convention the applicant submits that from 4 April 1973 to 26 September 1978 he was unlawfully excluded from the exercise of the right to care and custody.   He argues that the decision given by the Cologne Court of Appeal on 9 November 1973 deprived the Guardianship Court's order of 4 April 1973 of its legal basis.   THE LAW   The applicant complains of the length of the proceedings concerning the decision on the attribution of the right to care and custody.   The proceedings in question were divided into two phases.   The first phase concerned the period of the parents' separation pending the divorce action necessitating a provisional regulation of the right to care and custody.   The second phase concerned the period after the divorce became final necessitating a new and distinct decision on the attribution of the right to care and custody.   The applicant argues that both phases should be considered to form a whole as both concerned the right to care and custody.   The Government argue that the proceedings concerning the provisional attribution of the right to care and custody pending the divorce action have to be distinguished from the proceedings subsequent to the divorce.   The Commission does not consider it necessary to decide this issue as in any event it considers the applicant's complaint on the length of both proceedings taken as a whole to be, for the following reasons, manifestly ill-founded.   The period to be taken into consideration runs from 5 May 1972, when the applicant submitted his request to be granted the right to care and custody pending the divorce action, until 24 June 1980, when the Cologne Court of Appeal confirmed the Bonn Family Court's decision of 26 September 1978 attributing to the mother the right to care and custody over the applicant's two sons after the parents' divorce.   The subsequent proceedings before the Federal Constitutional Court no longer concerned the determination of a "civil right" (cf. Eur. Court H.R., Buchholz case, judgment of 6.5.81, Series A, Vol. 42, para. 48).   The reasonableness of the length of the proceedings must be assessed in each instance according to the particular circumstances, taking specifically into account the complexity of the case, the conduct of the applicant and the conduct of the judicial authorities (Eur. Court H.R., Guincho case, judgment of 10.7.84, Series A, Vol. 81, paras. 31 et seq.).   It has already been established in the Court's jurisprudence that in civil proceedings it is for the parties to take all appropriate steps to further the expeditious conduct of the litigation (Guincho judgment, loc. cit., para. 32).   Although the civil proceedings here in question were not mainly in the hands of the parties, as the Guardianship or Family Courts also had an obligation to investigate ex officio in order to find out which solution was in the best interest of the children, the Commission nevertheless considers that here too particular attention and weight has to be attributed to the parties' conduct.   In effect it is primarily the responsibility of the parents to find themselves an agreement on the exercise of the parental right of care and custody in case of a separation or divorce (see Section 1671 (3) of the Civil Code).   If a court has to be seized by one of the parents to help solve this problem its primary task is of a mediatory character.   If the question remains controversial between the parents, the court has to investigate the matter thoroughly and to take its decision.   Such decision is not taken on the basis of predetermined, clear-cut conditions set up by the law but on the basis of the court's discretionary appreciation of what is in the best interest for the children concerned.   As regards complexity the Commission considers that the proceedings in question were complicated in view of the fact that in addition to the controversial issue relating to the parental right of care and custody the judicial authorities constantly had to deal with the likewise highly controversial issue relating to the right of access claimed by the applicant.   Both issues necessitated that the German judicial authorities repeatedly had to assess the given situation and find interim solutions.   In addition the necessary investigations were rendered difficult by the fact that the children were living with their mother in Austria and reports had to be obtained via the official channels, from the local Austrian Youth Office.   These reports repeatedly had to be supplemented, following the applicant's requests.   Furthermore the proceedings were rendered complicated by the numerous appeals lodged by the parties and in particular the applicant.   The applicant has, by his own conduct, not only rendered the proceedings difficult, but his conduct was, in the Commission's opinion, to a large extent the main cause for the length of the proceedings. It follows from the attached survey of the main events of the proceedings that the applicant, by appealing against practically all decisions given in favour of his ex-wife, by complaining or criticising all expert opinions and Youth Office's reports in so far as they were in favour of attributing to or leaving to his ex-wife the right to care and custody, prevented that a final decision could be given in this respect before 24 June 1980.   It has also to be noted in this context that the applicant changed counsel several times. Although some of them continued the case immediately it is evident that changes of counsel of such unusual frequency negatively affected the course of proceedings and caused delays.   For example, the applicant's counsel informed the Court of Appeal on 13 November 1978 that he intended to submit further observations.   Eventually these observations were submitted, after repeated extensions of the time limit, by another counsel on 26 March 1979.   It also has to be noted that the other party to the proceedings, namely the applicant's ex-wife, like the applicant himself submitted numerous requests, motions and appeals.   Both parties have thus by their inflexible attitude multiplied the issues which had to be determined.   As regards the conduct of the proceedings by the judicial authorities it has first to be noted that in addition to the dispute on the right to care and custody the courts repeatedly had to deal with disputes on the right of access.   Both issues were by nature closely linked and it was therefore appropriate to deal with them in the same proceedings.   Taking into account the difficulties which arose from the constant disputes over the right of access, it cannot be found that there were important periods of inactivity on the part of the judicial authorities or that the matter was dealt with in an inappropriate, dilatory manner.   After the applicant lodged his request of 5 May 1972 to be granted the right to care and custody pending the divorce action, the Guardianship Court first obtained a report of the Youth Office in Völkermarkt/Austria on 14 July 1972.   From 13 July 1972 until 22 September 1972 the files were with the Regional Court.   In November the Guardianship Court had to deal with a request concerning the right of access.   Its order relating to this request was appealed against and both the Regional Court and the Court of Appeal had to deal with the matter.   After the return of the files from the Court of Appeal the Guardianship Court sent the files to the Bonn Youth Office for a report.   This report was received on 15 February 1973 and after an exchange of written observations the applicant and his ex-wife were heard by the court on 29 March 1973.   Subsequently the applicant asked for another opportunity to submit written observations and on 4 April 1973 the Guardianship Court decided to attribute the right to care and custody to the mother.   The applicant's appeal was rejected by the Regional Court on 8 June 1973.   This decision was then quashed by the Court of Appeal on 9 November 1973.   Neither the proceedings before the Guardianship Court, which decided on the applicant's request of 5 May 1972 on 4 April 1973, i.e. within eleven months, nor the appeal proceedings reveal in these circumstances any undue delay for which the judicial authorities would have to be held responsible.   The Commission notes in this context, that while the Court of Appeal considered, particularly in the light of the applicant's allegations, that further investigations were necessary, mainly about the children's living conditions in Austria, the reports obtained subsequently did not reveal anything justifying the withdrawal of the right to care and custody from the mother.   As the applicant later, in the proceedings subsequent to the divorce, which became final on 3 May 1974, considered that the Youth Offices' reports obtained so far were insufficient and as the Guardianship Court then had to take a fresh decision on the right to care and custody in the light of the actual situation, the result of the prior investigations which led to the Guardianship Court's order of 4 April 1973 could not serve as a basis for this new decision.   As soon as the Guardianship Court was informed that the divorce had become final it chose, in agreement with the parties, an expert, Dr. K, who was instructed in the same month, i.e. July 1974. This expert submitted an expert opinion on 12 November 1974. Meanwhile, a report of the Bonn Youth Office had been obtained.   As the applicant criticised Dr. K's expert opinion and did not accept it as a basis for the decision on the right to care and custody a new expert, Dr. V, was instructed on 23 May 1975.   In the meantime the files had to be submitted to the Court of Appeal and to the District Court of Berlin-Schöneberg.   Furthermore disputes on the right of access had to be settled.   Dr. V submitted his expert opinion in October 1975. Although the expert considered both parents apt to raise the children he recommended leaving them with the mother. Subsequently further observations were submitted by the parties and further disputes on the right of access had to be settled by the Guardianship Court.   As the applicant also criticised Dr. V's expert opinion the court ordered in April 1976 that a report of the competent Austrian Youth Office should be obtained.   This report was sent back in October 1976 as the applicant requested supplementary information.   At a hearing of 29 October 1976 the applicant requested that a further expert opinion be obtained from a psychologist.   The expert Dr. V, who also attended the hearing declared that no relevant new information could be expected from   a further expert opinion while further examination would affect the children.   The applicant then challenged the expert Dr. K.   This motion was rejected in November 1976.   An appeal was to no avail.   At the end of 1976 no disputes arose as regards the right of access.   As the applicant insisted the Guardianship Court had to find another expert.   An expert, who was accepted by both parties, was not found until May 1977.   This expert, Dr. W, was also requested, in August 1977, to state an opinion with regard to the regulation of the right of access and submitted her expert opinion on 27 June 1978.   Meanwhile the expert had, following the applicant's suggestion, been requested to contact a specialist for diabetes in view of the fact that the son Markus suffered from diabetes, and needed special treatment.   The preparation of the expert opinion also seems to have been delayed by an illness of the expert and by the fact that the files were not always available to the expert but had to be submitted to the Court of Appeal.   In any event the applicant has not himself alleged that the judicial authorities can be held responsible for the length of time it took to prepare the expert opinion.   The parties were then heard on 21 August 1978, subsequently submitted written observations and on 26 September 1978 the Family Court which had been competent to deal with the case since 1 July 1977, decided to grant the right to care and custody to the mother.   The Commission finds that the history of the proceedings before the Guardianship Court and the Family Court subsequent to the divorce likewise does not disclose any undue delays.   They are marked by the courts' efforts to take account of the applicant's objections to the evidence obtained in the course of the proceedings and of his requests to investigate the matter further.   Had the courts disregarded the applicant's cricitism and requests for obtaining further evidence a decision could have been taken already at the end of 1974 after the first expert, Dr. K, submitted a report on 12 November 1974 proposing leaving the children with the mother.   Again, a decision could have been taken after the Austrian Youth Office's report was received on 22 July 1976 suggesting leaving the children with the mother. Nevertheless the competent court continued to investigate the matter further at the applicant's request, which was maintained although the second expert, Dr. V, even warned that no relevant new information would be obtained but only damage be done to the children.   Finally the appeal proceedings which lasted from 29 September 1978, when the applicant lodged his appeal, until 24 June 1980 can in no way be considered to be unreasonably long taking into account that the applicant's new counsel did not submit his conclusions before 26 March 1979, that the parties subsequently exchanged observations until September 1979, that on 28 September 1979 the Court of Appeal decided to take further evidence, that this evidence, namely a further report of the competent Austrian Youth Office, was obtained on 20 February 1980, that subsequently the parties were given time to comment on this report and were eventually heard, as well as the children, and the expert Dr. W.   Having examined the complexity of the proceedings in question, their conduct by the applicant and the judicial authorities and having regard to the attached table of the main events, the Commission agrees with the Federal Constitutional Court that the length of the proceedings is explained by the particular difficulties of the case and considers that both parents, but in particular the applicant, are to a large extent responsible for the difficulties encountered by the judicial authorities.   An examination of the complaint as it has been submitted does not disclose any appearance of a violation of the rights and freedoms set out in the Convention and in particular in Articles 6 para. 1 (art. 6-1) and 8 para. 1 (art. 8-1).   It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (art. 27-2) of the Convention;   For these reasons, the Commission   DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission            President of the Commission         (H.C. KRÜGER)                             (C.A. NØRGAARD)